Liability of Engineers for Structural Design Errors: State

Volume 30 Issue 2 Article 2

1985

Liability of Engineers for Structural Design Errors: State of the Art Liability of Engineers for Structural Design Errors: State of the Art

Considerations in Defining the Standard of Care Considerations in Defining the Standard of Care

John C. Peck

Wyatt A. Hoch

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1985]

LIABILITY OF ENGINEERS FOR STRUCTURAL DESIGNERRORS: STATE OF THE ART

CONSIDERATIONS IN DEFINING THESTANDARD OF CARE*

JOHN C. PECKtWYATr A. HOCHt

Based on their delineation of four distinct strata of knowledgewithin the engineering profession, the authors propose a standardof care for engineers that reflects advances in knowledge and de-sign theory but that stops short of strict liability.

I. INTRODUCTION

I N 1970 , MAD Magazine's "Scenes We'd Like to See"' fea-tured a three frame cartoon entitled "The Ribbon Cutting

Ceremony." The first frame depicts a new suspension bridgeover a harbor, an assembled crowd, and a tuxedo-clad mayor pre-paring to cut the ceremonial ribbon. The second frame catchesthe mayor carefully cutting the ribbon. The third frame portraysdisaster as, to everyone's horror, the bridge collapses-the impli-cation being that the ribbon alone had supported the entirestructure.

MAD Magazine's satirical poke at the design profession andconstruction industry bears a double-edged truth: thecartoonist's suspension bridge, with its long structural spans,high strength materials, and infinite public access, symbolizes thetriumphs of twentieth century engineering and technology; newstructures continue to span greater distances with less materialand more aesthetic grace. Yet, during the past decade, some cata-

* This investigation was supported by University of Kansas GeneralResearch Allocation #3525-U.C.-0038. The authors wish to thank Ronald D.Montieth, J.D. 1983, University of Kansas, for his assistance in doing researchfor this article; Dr. Stanley T. Rolfe, Ross H. Forney Distinguished Professor ofEngineering and Chairman of the Department of Civil Engineering of theUniversity of Kansas, and Carl E. Hurt, Associate Professor of Civil Engineeringat the University of Kansas, for their many suggestions.

t Professor of Law, University of Kansas. B.S., Civil Eng'g, Kansas StateUniversity, 1968; J.D., University of Kansas, 1974. Member, Kansas Bar.

$ Associate, Foulston, Siefkin, Powers and Eberhardt, Wichita, Kansas. B.Arch., Kansas State University, 1980;J.D., University of Kansas, 1983. Member,Kansas Bar.

1. MAD MAGAZINE July 1970.

(403)

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Peck and Hoch: Liability of Engineers for Structural Design Errors: State of the

Published by Villanova University Charles Widger School of Law Digital Repository, 1985

VILLANOVA LAW REVIEW

strophic failures have occurred. Those at Kansas City's KemperArena, 2 Hartford's Civic Center Coliseum, 3 and Boston's JohnHancock Tower 4 resulted in enormous economic loss. The Kan-sas City Hyatt Regency walkway5 and the Harbour Cay condomin-ium 6 collapses caused human injury and loss as well. Failuressuch as these, occurring both during construction and after initialoccupancy or use, have focused public and professional attentionon the myriad potential hazards in large structures that shelterthousands of people and represent millions of dollars in capitalinvestment.

These and other less spectacular structural failures also haveprovided the legal system with the opportunity to refine the scopeand degree of the engineer's duties. Ironically, however, largefailures create such overwhelming economic loss that most dam-age suits are settled by the parties prior to trial, leaving a dearthof reported court opinions on the engineer's responsibilities.

Any structural failure may embody numerous and often con-

2. Part of Kemper Arena's 324-foot clear-span roof collapsed to the floorduring an intense rain and wind storm on June 4, 1979. Subsequent investiga-tion revealed that high-strength bolts subjected to dynamic loading conditionsfatigued under recurrent movement, precipitating the collapse. See Rocking ThatFatigued Bolts Felled Arena Roof, ENGINEERING NEWS REC., Aug. 16, 1979, at 10-12.

3. The 360' x 300' steel space frame roof of Hartford's Civic Center Coli-seum collapsed on January 18, 1978, after several days of heavy snow, rain, andfreezing temperatures. Although the $30 million building was heavily damaged,no injuries were reported. See AMERICAN INSTITUTE OF ARCHITECTS, TOWARDSSAFER LONG-SPAN BUILDINGS 3 (1981) [hereinafter cited as AIA]; Smith & Ep-stein, Hartford Coliseum Roof Collapse: Structural Collapse Sequence and LessonsLearned, CIVIL ENGINEERING--ASCE, Apr., 1980, at 59-62.

4. Foundation, structural steel, and glass curtainwall problems haveplagued the 60 story, rhomboid-shaped John Hancock Tower in Boston.Curtainwall glass breakage caused by unanticipated wind loading, minute inclu-sions or defects in the glass, and possibly inadequate structural stiffness delayedthe building's occupancy for five years and prompted replacement of all 10,344glass units on the tower. SeeJ. O'BRIEN, CONSTRUCTION DELAY 348-56 (1976).

5. The walkway's spectacular collapse onJuly 17, 1981, claimed 114 lives,the most ever in an American structural failure. Two 117-foot long "skywalks,"which spanned a five-story atrium area of the hotel, failed under 53% of theminimum load capacity required by the Kansas City Municipal and UniformBuilding Codes. After extensive destructive testing on specimens obtained fromthe walkway debris, the National Bureau of Standards concluded that the mostprobable cause of failure was insufficient load capacity in the suspended walks'supporting connections. National Bureau of Standards, Investigation of The KansasCity Hyatt Regency Walkway Collapse 249, 251 (1982).

6. On March 27, 1981, 11 construction workers were killed when the entirefive-story structure in Cocoa Beach, Florida, collapsed. A National Bureau ofStandards report cited insufficient punching shear capacity in the fifth floor rein-forced concrete slab, which failed during a concrete pour, as the cause of theaccident. See Florida Collapse Blamed on Design, ENGINEERING NEWS REC., June 18,1981, at 39.

404 [Vol. 30: p. 403

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Villanova Law Review, Vol. 30, Iss. 2 [1985], Art. 2


1985] ENGINEERS' LIABILITY 405

current causes outside the design professional's 7 control. Theseinclude defects in materials, improper member fabrication, inade-quate inspection or supervision during construction, and loadsexceeding design loads. Engineering design error, however, is amajor contributing cause which is wholly within the engineer'scontrol. The advent of more complex structural systems, such asthe space frame,8 the use of high-strength weldable metals, 9 theincreased magnitude and types of structural loadings,' 0 and theindustry's reliance on minimum-cost systems" may have ex-panded the engineer's responsibilities and in turn heightened hisliability exposure.12

Additionally, the continuing force of empirical research may

7. The terms "design professional," "architect" and "engineer" are usedinterchangeably throughout this article to designate individuals responsible fordesign services on a construction project.

8. Space frames or space frameworks are "[t]hree-dimensional structurescomposed of a number of bars hinged together in such a manner as to form arigid framework." C. NORRIS & J. WILBUR, ELEMENTARY STRUCTURAL ANALYSIS116 (2d ed. 1960). Space frames have been defined alternatively as "three-di-mensional structural systems composed of interconnected members, other thanbearing walls, and laterally supported to function as a complete, self-containedunit, with or without the aid of horizontal diaphragms or floor bracing systems."STANDARD HANDBOOK FOR CIVIL ENGINEERS § 15-12 (F. Merrit 3d ed. 1983).One commentator has described the design advantages of space frames in thefollowing way:

Space frames possess a positive aesthetic quality by having a molecular-type structure which tends to duplicate nature. Structural materials areutilized efficiently, since space frames span in more than one direction.With the use of high-strength materials, larger column-free spans canbe attained, thereby providing a greater flexibility of usage within thestructure. Space frames provide great rigidity and inherent redun-dancy, which results in an increased safety factor. Most space framesystems utilize extensive prefabrication in the shop, thereby eliminatingthe need for highly skilled field labor. Many space frames can be as-sembled on the ground, thus resulting in increased construction safetyand further reduction in skilled labor. Space frames possess a versatil-ity of shape and form, and can utilize a standard module to generateflat grids, barrel vaults, domes, and free-form shapes.

Cuoco, State-of-the-Art of Space Frame Roof Structures, in AMERICAN SOCIETY OFCIVIL ENGINEERS SYMPOSIUM ON LONG SPAN ROOF STRUCTURES 1 (Oct. 26-30,1981).

9. Recent accident investigations have uncovered a direct correlation be-tween high-strength steel and catastrophic failures of buildings, aircraft wings,and other steel products. Although alloyed steel offers the engineer addedstrength, durability, and cost saving over conventional steel, "[i]ts flaws are allthe more pernicious because designers specify its use in precisely those applica-tions where the margin for error is the slimmest." High-Strength Steel Is Implicatedas Villain in Scores of Accidents, Wall St. J., Jan. 16, 1984, at 1, col. 6.

10. See Rolfe & Hall, Fracture Mechanics, Fracture Criteria, and Fracture Controlin Structures, in STRUCTURAL AND GEOTECHNICAL MECHANICS 70 (1977).

11. See id.12. See id. at 70-71.

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affect the engineer's duties.13 Recent advances in the under-standing of fatigue failure, 14 stress concentrations,1 5 and brittlefracture 6 in steel members-the staple of most large structures-have created new design considerations. Yet knowledge andtechnology are not easily assimilated into practice. 17 Determiningan engineer's liability is thus becoming more complicated, be-cause of both this increased knowledge and the incorporation ofnovel design theories into structures performing at the cuttingedge of the profession.

This article attempts to define the liability limits of structuralengineers. Part II describes the engineering field of knowledgeby way of a stratification of knowledge levels. Part III examinesthe various standards of care used by appellate courts in civildamage actions to judge an engineer's design performance. Us-ing this framework, Part IV advocates that courts adopt a higherstandard of care, one that reflects advances irn knowledge and de-sign theory but that stops short of strict liability. Part IV con-cludes by identifying practices and alternatives available to the

13. For a discussion of the structural design engineer's standard of careunder present law, see infra notes 69-115 and accompanying text.

14. The American Society for Testing and Materials (ASTM) defines fatigueas "the process of progressive localized permanent structural change occurringin a material subjected to conditions which produce fluctuating stresses andstrain. . .and that may culminate in cracks or complete fracture after a sufficientnumber of fluctuations." AMERICAN SOCIETY FOR TESTING AND MATERIALS, COM-PILATION OF ASTM STANDARD DEFINITIONS 249 (4th ed. 1979) [hereinafter citedas ASTM STANDARD DEFINITIONS]. In manufactured steel products, fatigue fail-ures are the inevitable consequence of cyclical live load design stresses. Thetouchstone of liability for such fatigue failures is the reasonableness of thelength of the product's service life. Allen, Fatigue Failure in Products Liability Ac-tions, 28 ALA. L. REV. 575, 581, 584 (1977). In the area of structural design, bycontrast, fatigue failure must be prevented because of the enormous risk andcapital investment involved in a building collapse.

15. Stress concentration is defined as[a] condition in which a stress distribution has high localized stresses.A stress concentration is usually induced by an abrupt change in shapeof a member. In the vicinity of notches, holes, changes in diameter of ashaft, or application points of concentrated loads, maximum stress isseveral times greater than where there is no geometrical discontinuity.

13 ENCYCLOPEDIA OF SCIENCE AND TECHNOLOGY 219 (5th ed. 1982). Local stressconcentration "may be due to poorly made welds, small holes, and rough ordamaged edges resulting from the fabrication processes of shearing, punching,or poor-quality oxygen cutting." B. JOHNSTON, F. LIN & T. GALAMBOS, BASICSTEEL DESIGN 33 (2d ed. 1980).

16. A brittle fracture occurs when a structural member fractures perpendic-ular to the direction of loading without obvious, uniform cold drawing. ASTMSTANDARD DEFINITIONS, supra note 14, at 78.

17. For a discussion of how new research, knowledge, and technologicaladvances are assimilated into the structured design engineering process, see in-

fra notes 36-40 and accompanying text.

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ENGINEERS' LIABILITY

engineer to limit his liability exposure and to reduce the risk ofcatastrophic structural failures.

II. THE STRUCTURAL ENGINEERING STATE OF THE ART

An engineer's level of skill depends upon his training, experi-ence, and savvy. The gamut of expertise held by members of theprofession extends from that of a new structural engineeringgraduate, to that of a newly-certified professional, to that pos-sessed by a venerable pro with thirty years of experience. The lawof structural engineering liability, however, is not clearly de-fined-at least not as clearly defined as products liability law. Inproducts liability, a product not designed to the "state of theart 1 8 can create liability for its manufacturer.' 9 No such parallelstate of the art for engineers exists. Rather, the law has protectedstructural engineers who have designed at the minimum profes-sional level of competence but not necessarily at the state of theart.20 If our proposed new standard of care were accepted, 2'

18. See Note, Products Liability---Strict Liability-Elimination of "State of the Art"Defense, 41 TENN. L. REV. 357 (1974). "State of the art" is defined as the extent towhich a product could have been safely designed given the scope of knowledgeand experience of the industry at the time of manufacture and sale. Id.

19. Compliance with the state of the art standard may operate as an affirma-tive defense. See, e.g., Moorer v. Clayton Mfg. Corp., 128 Ariz. 565, 569, 627P.2d 716, 720 (1980) (noting Arizona statute that allows the state of the art de-fense in product liability cases), cert. denied, 454 U.S. 866 (1981); Heath v. Sears,Roebuck & Co., 123 N.H. 512, 530, 464 A.2d 288, 299 (1983) (recognizing anaffirmative defense to product liability actions based on discoverability of therisk as measured by the state of the art at the time of distribution or sale); Day v.Barber-Coleman Co., 10 Ill. App. 2d 494, 508-10, 135 N.E.2d 231, 238-39(1956) (permitting state of the art defense, including consideration of reasona-bleness of defendant's design choice, in a negligence action against a manufac-turer for defective design of an overhead vertical door).

In some jurisdictions, compliance with the state of the art may be offeredonly as evidence of the defendant manufacturer's reasonableness in the designand manufacture of its product. See, e.g., Rodriguez v. Compass Shipping Co.,456 F. Supp. 1014, 1024 (S.D.N.Y. 1978) (adherence to the usual practice of anindustry is not, in itself, a complete defense to a charge of negligence); Gel-sumino v. E.W. Bliss Co., 10 Ill. App. 3d 604, 608, 295 N.E.2d 110, 113 (1973)(evidence of conformity to the state of the art is not conclusive as to nonnegli-gence, but may be considered along with other evidence in determining reason-ableness of defendant's conduct).

Determination of the state of the art is a question of fact and is proven byexpert testimony at trial. See Chown v. U.S.M. Corp., 297 N.W.2d 218, 222(Iowa 1980); Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 5, 574 P.2d136, 139 (1977); Hancock v. Paccar, Inc., 204 Neb. 468, 478, 283 N.W.2d 25, 35(1979). Few reported appellate decisions have attempted to define state of theart in either strict liability or negligence actions based on defective products. SeeNote, supra note 18, at 357-59. For a further discussion of state of the art inproducts cases, see infra notes 22-35 and accompanying text.

20. See infra notes 69-115 and accompanying text.

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courts would have to take steps to define the structural engineer-ing state of the art. A brief examination of the state of the art inproducts cases will be helpful to the process of formulating a defi-nition for structural engineers.

A. State of the Art in Products Cases

State of the art originated as a defense to negligence claimsfounded on defective products.2 2 If the manufacturer's productdesign conformed to the industry standard, the manufacturercould escape liability for injuries sustained from use of theproduct. 23

The advent of strict products liability diminished the role ofthe state of the art definition. Under the theory of strict liabilitydefined in section 402A of the Second Restatement of Torts, amanufacturer is liable for injuries caused by his product if theproduct is both defective and unreasonably dangerous. 24 Thisrule implicitly creates a high standard of care because compliancewith industry custom, in and of itself, is inadequate to avoid

21. See infra notes 135-52 and accompanying text.22. See Day v. Barber-Colman Co., 10 I1. App. 2d 494, 135 N.E.2d 231

(1956). In Day, the Illinois Court of Appeals articulated its standard and ration-ale for the state of the art defense as follows:

[Ilt is not of itself negligence to use a particular design or method inthe manufacture or handling of a product or doing a job which is rea-sonably safe and in customary use in the industry, although other possi-ble designs, whether in use in the industry or not, might be conceivedwhich would be safer, and evidence as to what is thought by some to bea safer design or method or product is not admissible.

Id. at 508, 135 N.E.2d at 238. See also Olson v. Arctic Enters., 349 F. Supp. 761(D.N.D. 1972) (permitting state of the art defense in a negligent design actionagainst a snowmobile manufacturer).

23. See Comment, The State of the Art Defense in Strict Products Liability, 57MARQ. L. REV. 649 (1974).

24. RESTATEMENT (SECOND) OF TORTS § 402A (1965). Section 402A pro-vides as follows:

(1) One who sells any product in a defective condition unreasonablydangerous to the user or consumer or to his property is subject to lia-bility for physical harm thereby caused to the ultimate user or con-sumer, or to his property, if

(a) the seller is engaged in the business of selling such a product,and

(b) it is expected to and does reach the user or consumer withoutsubstantial change in the condition in which it is sold.(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparationand sale of his product, and

(b) the user or consumer has not bought the product from or en-tered into any contractual relation with the seller.

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liability.25

Nonetheless, many courts continue to acknowledge the rele-vance of state of the art in product liability actions, 26 but differ intheir definition and analytical application of the term "state of theart." Some jurisdictions define state of the art as scientific knowl-edge at the time of manufacture or construction that can be incor-porated into the product in an economically and practicallyfeasible manner.2 7 Under this definition, the manufacturer is heldto a higher standard than in negligence cases. Other jurisdictionsfollow the negligence definition of state of the art as "conformitywith industry-wide practice," yet effectively refuse to apply thisstandard by considering expert testimony as to whether the de-sign was reasonable. 28 Still other courts, while focusing onwhether a risk of harm from use of a product is unreasonable,have considered factors such as the availability, cost, practicality,and technological feasibility of alternative designs to establish thestate of the art.29 Recently, some courts have even injected rea-sonableness into the equation by holding that the law does notrequire manufacturers to be prescient, to recognize and utilize allart and science everywhere, or to create the ultimate in designand safety. 30

25. See, e.g., Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 450 N.E.2d204, 463 N.Y.S.2d 398 (1983). But see Caterpillar Tractor Co. v. Beck, 593 P.2d871 (Alaska 1979); Gelsumino v. E.W. Bliss Co., 10 Ill. App. 3d 604, 295 N.E.2d110 (1973).

26. See O'Donnell, Design Litigation and the State of the Art: Technology, Practiceand Reform, 11 AKRON L. REV. 627 (1977-78) (citing Spurlin v. General MotorsCorp., 528 F.2d 612 (5th Cir. 1976); Hoppe v. Midwest Conveyor Co., 485 F.2d1196 (8th Cir. 1973); Schneider v. Chrysler Motors Co., 401 F.2d 549 (8th Cir.1968); Holmgren v. Massey Ferguson, Inc., 394 F. Supp. 910 (D.N.D. 1974)(other citations omitted); Raleigh, The "State of the Art" in Product Liability: A NewLook at an "Old" Defense, 4 OHIO N.U.L. REV. 249 (1977); Strict Products Liabilityand State of the Art Evidence in Texas, 45 J. AIR. L. COM. 711 (1980).

27. See Chown v. USM Corp., 297 N.W.2d 218, 221 (Iowa 1981); Boatlandof Houston, Inc. v. Bailey, 609 S.W.2d 743, 745 (Tex. 1980).

28. See 2 L. FRUMER & M. FRIEDMAN, PRODUCTS LIABILITY § 16A[4][i](1980); Weinstein, Twerski, Piehler & Donaher, Product Liability: An Interaction ofLaw and Technology, 12 Duo. L. REV. 425, 450 (1974).

29. For examples of strict liability cases in which courts have permitted con-sideration of technical feasibility, cost, practicality, and effect on the utility of theproduct in defining state of the art, see Raney v. Honeywell, Inc., 540 F.2d 932,935 (8th Cir. 1976); Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 887 (Alaska1979); Kerns v. Engelek, 76 Ill. 2d 154, 162-63, 390 N.E.2d 859, 864 (1979);Gelsumino v. E.W. Bliss Co., 10 Ill. App. 3d 604, 609, 295 N.E.2d 110, 113(1973).

30. See Mitchell v. Machinery Center, Inc., 297 F.2d 883, 886 (10th Cir.1961); Garst v. General Motors Corp., 207 Kan. 2, 20, 484 P.2d 47, 61 (1971).But see Beshada v. Johns-Manville Sales Corp., 90 N.J. 191, 447 A.2d 539 (1982)

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410 VILLANOVA LAW REVIEW [Vol. 30: p. 403

The proposed federal products liability act offers yet anotherdefinition of the state of the art in products cases. 3' The act,which is designed to preempt all state product liability actions,32

would impose liability on manufacturers for harm caused by "un-reasonably dangerous" products3 3 when a means to eliminate thedanger is within "practical technological feasibility."3 4 The billdefines "practical technological feasibility" as "the technical,medical, and scientific knowledge . . which, at the time of pro-duction .. .was developed, available and capable of use in themanufacture of a product, and economically feasible for use by amanufacturer."

3 5

B. A Practical Formulation of the State of the Artfor Structural Engineers

Although the products state of the art might be applicable byanalogy to structural failure cases, it is preferable to define a stateof the art for structural design based on the development, accept-ance, and dissemination of new structural design theories. Fourhorizons of structural engineering knowledge can and should beidentified by courts as guidelines in defining the state of the artand in formulating an appropriate standard of care for designprofessionals.3 6

The top stratum represents "cutting edge" research on newhypotheses and design solutions proposed by research engineersfor professional institutes,3 7 university professors, and a few prac-

(holding defendant manufacturer to the level of all knowledge scientifically dis-coverable as of the time of trial).

31. S. 44, 98th Cong., 1st Sess. (1983). See Kircher, Federal Product Legisla-tion and Toxic Tort: The Defense Perspective, 28 VILL. L. REV. 1116 (1983); Phillips,The Proposed Federal Product Liability Statute from the Toxic Tort Plaintiff's Perspective,28 VILL. L. REV. 1156 (1983); Schwartz & Means, The Need for Federal ProductLiability and Toxic Tort Legislation: A Current Assessment, 28 VILL. L. REV. 1088(1983); Note, Proposed Federal Product Liability Legislation-A Summary and Analysis,I J. PROD. L. 103 (1982).

32. S. 44, 98th Cong., 1st Sess., § 3(c) (1983). The federal act would elimi-nate all state products, negligence, and breach of express or implied warrantyactions for damages caused by a manufactured product.

33. Id. § 4(a).34. Id. § 5(b).35. Id. § 2(8).36. Conversations with Stanley R. Rolfe, Ross H. Forney Distinguished

Professor of Engineering, Chairman of the Department of Civil Engineering,University of Kansas (1983 and 1984).

37. For example, the American Institute of Steel Construction (AISC), theConcrete Reinforcing Steel Institute (CRSI), the American Society of Civil Engi-neers (ASCE), and the American Society for Testing and Materials (ASTM) allparticipate in ongoing structural research.

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ticing engineers. Some of this research, like the development ofthe space frame, may transcend fundamental structural concepts.Other research refines accepted principles or demonstrates theneed to consider alternative or additional design factors. Thisadvanced research is typically the subject of professional researchsymposia, but usually would not be found in innovative structuraldesign.38

Once cutting edge research is proven and generally acceptedby professional associations, it becomes part of the second, "openliterature" horizon. Typically the research engineer will present apaper formalizing his findings at a professional society meeting.Many new theories are submitted to the American Society forCivil Engineers (ASCE) committees, which review the underlyingresearch. Papers deemed worthy are then published.3 9 By pub-lishing the research, the professional society impliedly gives thefindings its "stamp of approval."

Publication of a new proposal, however, does not yet signifytotal acceptance by the profession. For this reason, professionaljournals encourage, solicit, and print responses to published pa-pers as a medium for active dialogue between researchers andpractitioners. Moreover, contrary articles may appear in the jour-nals. It is only after a period of maturation following publicationand testing in the literature, then, that the third horizon of "pro-fessionally accepted knowledge" arises. Proof of acceptance is in-ferred from publication of corroborating articles as well as fromthe absence of effective refutation. This third level defines theupper limit of knowledge employed by quality structural engi-neers who keep abreast of advances in the profession.

Finally, the fourth and bottom level of knowledge, the "un-dergraduate" horizon, encompasses the design information nec-essary to complete a competent (by current legal standards),traditional structural design. Presumably, all engineers holding abachelor of science degree in civil engineering have a basic graspof statics, dynamics, strength of materials, basic design concepts,and industry design manuals.40 They do not, however, have

38. "A construction project should not be a design professional's labora-tory .... ." Rubin & Goldberg, Foundation Failures and Rehabilitation, 3 CONSTR.LAW. 10 (1982).

39. For examples of ASCE Publications, see Civ. ENGINEERING; J. STRUC-TURAL ENGINEERING; J. ENGINEERING MECHANICS; and J. CONSTRUCTIONDIVISION.

40. See AMERICAN CONCRETE INSTITUTE, ACI MANUAL OF CONCRETE PRAC-TICE (1984); AMERICAN INSTITUTE OF STEEL CONSTRUCTION, MANUAL OF STEELCONSTRUCTION (8th ed. 1980); AMERICAN SOCIETY FOR TESTING & MATERIALS,

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either the actual design experience or understanding of new con-cepts displayed by a licensed professional engineer practicing atthe forefront of available knowledge.

These four horizons illustrate the movement of a new designconcept or advance in knowledge from the time of its inception atthe cutting edge, through its publication in open literature, its ac-ceptance by the profession, to final promulgation in design codesand undergraduate curricula. Each state embodies successes, fail-ures, and refinements. It is from this continuum that the cruciallegal issue flows: when in the development of structural knowl-edge is an engineer expected to know, understand, and incorpo-rate new design principles or methodologies into his structures?

Historically, the law has required the engineer to exerciseonly "ordinary and reasonable skill usually exercised by one ofthat profession" in order to avoid liability for professional negli-gence.4 1 This standard, commonly known as "the professionalstandard, '42 corresponds to the "custom" definition of state ofthe art found in negligence-based products liability actions. It re-quires only that the engineer use the expertise found at the un-dergraduate horizon. Thus, the structural engineer can defend anegligence action by proving that he designed at the level of theaverage practitioner, which may only require proof that his designincorporated industry-standard design codes and undergraduate-level expertise. By contrast, the strict products liability definitionof state of the art would encompass all structural knowledge andexpertise practically and technically feasible for any design.Knowledge of this sort would be drawn from the middle two hori-zons of our scheme.

As an alternative to the foregoing, our suggested four-tieredstratification would place the "state of the art" for the structuralengineer at the third, "professionally accepted knowledge" hori-zon, one step up from the lowest, undergraduate level. In ourdefinition, state of the art incorporates scientific and engineeringadvances known to result in better and safer structures. Our pro-

1984 ANNUAL BOOK OF ASTM STANDARDS; CONCRETE REINFORCING STEEL INSTI-

TUTE, CRSI HANDBOOK (2d ed. 1975).41. Major v. Leary, 241 A.D. 606, 606, 268 N.Y.S. 413, 414 (1934). See

Seiler v. Levitz Furniture Co., 367 A.2d 999, 1007-08 (Del. 1976) (standard of"reasonable and ordinary diligence"). See also Conklin v. Cohen, 287 So. 2d 56,61 (Fla. 1973); Bodin v. Gill, 216 Ga. 467, 472, 117 S.E.2d 325, 330 (1961).

42. See J. SWEET, LEGAL ASPECTS OF ARCHITECTURE, ENGINEERING, AND THE

CONSTRUCTION PROCESS 833-38 (2d ed. 1977) (applicability of the "profes-sional" standard of care to design professionals).

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posal would require engineers to be cognizant of, and to incorpo-rate into their designs, advances which had reached the level ofprofessionally accepted knowledge. Before explaining our ration-ale for this proposal, a general review of the context and resultsof litigation against design engineers is appropriate.

III. CIVIL ACTIONS AGAINST THE ENGINEER

The typical building project is initiated by a prospectiveowner, who contracts with an architect for the development of theproject's design.43 The architect will then subcontract with vari-ous specialty engineers, including the structural engineer.44 To-gether they develop the project drawings and specifications whichform the basis for the contractor's bid for construction on an en-tirely separate contract with the owner. The successful bidderalso subcontracts for specialty labor and materials. Thus theowner stands at the apex of a triangular contractual relationship,one leg of which represents the architect's design contract, andthe other leg of which represents the general contractor's con-struction contract. In projects not involving an architect, thestructural engineer occupies the architect's position on thetriangle. 45

Design-induced structural failure may result in engineer lia-bility. The owner, with whom the engineer may or may not be incontractual privity, may have a cause of action to recover for eco-nomic loss. 46 An injured worker or bystander, with whom there isclearly no contractual privity, may have a claim for economic lossand personal injury.47 The injured party's choice of remedy willdepend on appropriate evaluation of contract law, tort law,48 andstatutes of limitations. 49

43. 2 AMERICAN INSTITUTE OF ARCHITECTS, ARCHITECT'S HANDBOOK OF PRO-FESSIONAL PRACTICE, Document B-141 (1977 ed.) [hereinafter cited as AIA].

44. 2 AIA, supra note 43, Document C-141, art. 1 (1979 ed.); NATIONAL SO-CIETY OF PROFESSIONAL ENGINEERS, Document 1910-10 (1980 ed.).

45. Architects usually design buildings and are not involved in bridge, off-shore drilling rig, and television tower design.

46. For a discussion of the design engineer's potential liability to theowner, see infra notes 50-67 and accompanying text.

47. For a discussion of the design engineer's potential liability to third par-ties such as injured bystanders, see infra note 68 and accompanying text.

48. See infra notes 50-68 and accompanying text.49. In the late 1960's, the AIA, the NSPE, and the Associated General Con-

tractors lobbied state legislatures for the enactment of special statutes of limita-tion or repose for builders of structures on real property. See Comment, RecentStatutory Developments Concerning the Limitations of Actions Against Architects, Engineers,and Builders, 60 Ky. L.J. 462, 464 (1972); Comment, A Defense Catalogue for the

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VILLANOVA LAW REVIEW [Vol. 30: p. 403

A. Choice of Remedy

1. Engineer in Privily with Owner

The law is well settled that a project owner in contractualprivity with the structural engineer can sue for economic loss aris-ing from a breach of contract. 50 In order to ascertain whetherthere has been such a breach, however, the factfinder must deter-mine what the engineer was contractually obligated to do. With-out express contractual language to guide them,5' the courts'interpretations of the engineer's contractual duty have been "in-fected" with a tort standard.5 2

Although the engineer's design responsibility arises purely as

Design Profession, 45 UMKC L. REV. 75, 91-96 (1976). Forty-six state legislatureseventually passed or amended statutes with limitations ranging from three totwenty years, although twelve statutes were later held unconstitutional. For anaccurate accounting of the statutes and their current status, see Statutes of Limita-tion for the Design Professions, A/E Legal Newsletter (V.O. Shinnerer Co. Jan. 1983Special Supp. No. 1, 3).

Special statutes of limitations for engineers, architects and builders gener-ally run from the time of substantial completion of construction, not from finalperformance of the contractual duties or the date of injury. See, e.g., COLO. REV.STAT. § 13-80-127 (Supp. 1983) (suits against engineers and architects mustcommence within two years of the time the claim arises and "in no event...more than ten years after the substantial completion of the improvement").Where traditional tort statutes apply, the statute will generally run from the dateof substantial injury. See, e.g., KAN. STAT. ANN. § 60-513 (1983) (tort actionsmust be brought within two years from the date of substantial injury).

50. See RESTATEMENT (SECOND) OF CONTRACTS § 347 (1981). Section 347embodies the accepted legal principle that a party to a contract injured as a re-sult of a breach of the contract has a right to damages based on his expectationinterest as measured by:

(a) the loss in the value to him of the other party's performancecaused by its failure or deficiency, plus(b) any other loss, including incidental or consequential loss, causedby the breach, less(c) any cost or other loss that he has avoided by not having toperform.

Id.51. Although the AIA and NSPE standard contract documents between

owner and design professional carefully define those duties of the architect orengineer, neither attempts to define the manner of performance in more thanvague terms. For example, the architect is charged with becoming "generallyfamiliar with the progress and quality of the [w]ork" in determining if the workis proceeding in accordance with the contract documents. See AIA, supra note43, Document B-141, 1.5.4; NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS,

Document 1910-1 1.6.2 (1979 ed.) [hereinafter cited as NSPE]. Neither con-tract requires the professional to use standard design manuals or formulae; min-imum competence is assumed.

52. Note, Architectural Malpractice: A Contract-Based Approach, 92 HARV. L.REV. 1075, 1089 (1979) (citing Straus v. Buchman, 96 A.D. 270, 273, 89 N.Y.S.226, 228 (1904), aff'd mem., 184 N.Y. 545, 76 N.E. 1109 (1906); White v. Palley,119 Or. 97, 99-100, 247 P. 316, 317 (1926)).

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a matter of contract, a majority of jurisdictions uphold liability intort for breach of a contractual duty whenever it involves a fore-seeable, unreasonable risk of harm to the interests of the owner: 53

If a defendant may be held liable for the neglect of aduty imposed on him, independently of any contract, byoperation of law, a fortiori ought he to be held liablewhen he has come under an obligation to use care as theresult of an undertaking founded on a consideration.Where the duty has its roots in contract, the undertakingto observe due care may be implied from the relation-ship .... 54

Thus, the owner in privity of contract with the engineer usuallyhas available to him both contract and tort remedies.

2. Engineer Not in Privity with Owner

Although the owner may contract directly with the engineer,it is more probable that he will contract with an architect and al-low the architect to execute independent contracts with structuraland mechanical engineers as well as interior and landscaping con-sultants. 55 In such a case, the owner's lack of privity with the en-gineer raises an impediment to actions both in contract and intort. Under traditional contract law, the owner, absent privity,cannot sue for breach of contract unless he is an intended thirdparty beneficiary56 of the engineer's agreement with thearchitect.

5 7

53. See generally PROSSER AND KEETON ON THE LAW OF TORTS § 92, at 55 (W.Keeton 5th ed. 1984) [hereinafter cited as PROSSER AND KEETON].

54. Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 498, 79 N.E. 503, 505(1906).

55. See supra notes 43-45 and accompanying text.56. See Waterford Condominium Ass'n v. Dunbar Corp., 104 Ill. App. 3d

371, 432 N.E. 2d 1009 (1982) (condominium owners who were not in privitywith the developer could not bring suit in contract or implied warranty unlessthey could demonstrate that they, as subsequent purchasers, were the intendedbeneficiaries of the developer's contract with the original purchaser).

The Second Restatement of Contracts defines a beneficiary of a promise asan intended beneficiary if recognition of a right to performance in the benefici-ary is appropriate to effectuate the intention of the parties and the circumstancesindicate that the promisee (architect) intends to give the beneficiary (owner) thebenefit of the proposed performance. RESTATEMENT (SECOND) OF CONTRACTS§ 302 (1981). See alsoJ. CALAMARI &J. PERILLO, CONTRACTS § 17-2 (1982).

57. Cf Holiday Dev. Co. v.J.A. Tobin Constr. Co., 219 Kan. 701, 549 P.2d1376 (1976) (subcontractor or materialman may obtain a personal judgmentagainst owner where there was privity of contract or a direct promise to pay thesubcontractor in the owner's contract with the architect). See generally 4 A.CORBIN, CORBIN ON CONTRACTS § 774 (1964).

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Moreover, some courts will not recognize a tort action foreconomic injury absent privity of contract.58 Although thelandmark MacPherson v. Buick Motor Co. 59 decision and its progenyhave abrogated the privity doctrine for personal injuries,60 mostproject owners will not suffer personal injury as a result of struc-tural failure. Thus, the owner not in privity with the engineermight be left without a tort cause of action for negligent perform-ance of the engineer's contractural duties.

A growing number of jurisdictions, 61 however, refuse to rec-ognize privity as a defense to economic injury actions arising froma design professional's conduct unless the plaintiff is beyond theforeseeable scope of harm. 62 The owner's position at the apex ofthe construction project triangle clearly places him within this

58. See, e.g., Peyronnin Constr. Co. v. Weiss, 137 Ind. App. 417, 208 N.E.2d489 (1965) (complaint by contractor against engineers for economic loss suf-fered as a result of engineers' negligence did not state a cause of action becausethe contractor failed to show a contractual relation between itself and the engi-neers); Delta Constr. Co. v. City ofJackson, 198 So. 2d 592 (Miss. 1967) (deny-ing recovery for economic loss in the absence of privity of contract).

59. 217 N.Y. 382, 111 N.E. 1050 (1916).60. See Montijo v. Swift, 219 Cal. App. 2d 351, 353, 33 Cal. Rptr. 133, 134-

35 (1963) (privity of contract not required in an action to recover damages forphysical injuries); Paxton v. Alameda County, 119 Cal. App. 2d 393, 259 P.2d934 (1953) (without discussing issue, court affirmed recovery for injuries despitelack of privity); Inman v. Binghamton Hous. Auth., 3 N.Y.2d 137, 144, 164N.Y.S.2d 699, 703, 143 N.E.2d 895, 898-99 (1957) (those who plan and build adefective improvement on real estate are liable for physical injuries resultingfrom the defect, regardless of privity of contract). See generally Note, Liability ofArchitects and Engineers to Third Parties: A New Approach, 53 NOTRE DAME LAW. 306,307-09 (1977).

61. E.C. Ernst, Inc. v. Manhattan Constr. Co., 551 F.2d 1026 (5th Cir.) (ar-chitect liable for economic injury to contractor), reh 'g denied in part and granted inpart, 559 F.2d 268 (5th Cir. 1977), cert. denied, 434 U.S. 1067 (1978); DetweilerBros., Inc. v.John Graham & Co., 412 F. Supp. 416 (E.D. Wash. 1976) (privity ofcontract not necessary in order for contractor to maintain a tort action againstarchitect); Cooper v. Jeune, 56 Cal. App. 3d 860, 128 Cal. Rptr. 724 (1976)(right of recovery against negligent architect by those not in privity of contractwith him extends to economic loss); A.R. Moyer, Inc. v. Graham, 285 So. 2d 397(Fla. 1973) (third party general contractor has right of recovery in tort againstarchitect or engineer despite lack of privity); Redarowicz v. Ohlendorf, 95 Ill.App. 3d 444, 420 N.E.2d 209 (1981), aff'd in part, 92 Ill. 2d 171, 441 N.E.2d 324(1982) (builder liable to subsequent purchasers for economic loss resulting fromlatent defects in construction); Kristek v. Catron, 7 Kan. App. 2d 495, 644 P.2d480 (1982) (purchaser of a residence may recover damages for economic losscaused by negligence of builder despite lack of privity); Craig v. Everett M.Brooks Co., 351 Mass. 497, 222 N.E.2d 752 (1967) (privity is not a requirementfor recovery for economic loss caused by contractor's negligence in performinghis duty); McMillan v. Brune-Harpenau-Torbeck Builders, 8 Ohio St. 3d 3, 455N.E.2d 1276 (1983) (privity of contract is not a necessary element in negligenceaction for economic injury).

62. See J. SWEET, supra note 42, at 730.

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scope, thus providing a negligence cause of action for personaland ecQnomic injury in some states.

In most suits against structural engineers, a tort remedy willbe more advantageous to the injured owner than a contract rem-edy. Under the widely accepted rule of Hadley v. Baxendale,63 con-tract damages are limited to those that are foreseeable, eitherbecause the result followed in the ordinary course of events orbecause the party had reason to know of the result at the time thecontract was formed. 64 Thus, whether reconstruction costs andloss of use of the property are recoverable under a contract de-pends upon whether they are foreseeable. 65 By contrast, in tortthe owner may recover all damages proximately caused by thetortfeasor's negligence 66 and sometimes even punitive damagesare awarded. 67

3. Injured Workers and Bystanders

The employee of the contractor or subcontractor injuredduring construction, the tea dance participant paralyzed by a fail-ing skywalk, the professional hockey team relocated from a dam-aged municipal arena, or the corner business showered by askyscraper's glass might sue the structural engineer but wouldhave no option but to proceed in tort. Absence of privity with theengineer will bar most contract suits68 and possibly some negli-

63. 156 Eng. Rep. 145 (1854). See RESTATEMENT (SECOND) OF CONTRACTS§ 351 (1981) (adopting Hadley v. Baxendale's forseeability limitation).

64. 156 Eng. Rep. at 151.65. See English Village Properties, Inc. v. Boettcher & Lieurance Constr.

Co., 7 Kan. App. 2d 307, 316, 640 P.2d 1282, 1290 (1982) (the cost of repairrule is the proper measure of damages). See generally 5 A. CORBIN, supra note 57,§ 1007 (1964); Note, Economic Loss in Products Liability Jurisprudence, 66 COLUM. L.REV. 917, 918 (1966). Punitive damages are not recoverable for breach of con-tract. Kemper v. Rohrich, 508 F. Supp. 444, 449 (D. Kan. 1980). See 5 A.CORBIN, supra note 57, § 1077, at 438.

66. Crisci v. Security Ins. Co., 66 Cal. 2d 425, 58 Cal. Rptr. 13, 426 P.2d173 (1967) (injured party may recover all damages proximately caused by a de-fendant's conduct, whether or not the damages were foreseeable or anticipated);Enlow v. Hawkins, 71 Kan. 633, 81 P. 189 (1905) (tortfeasor liable for all dam-ages which are natural and probable results of his conduct). See generally PROS-SER AND KEETON, supra note 53, § 41.

67. Generally, only a finding of willful, wanton, or reckless conduct will jus-tify an award of punitive damages in tort actions. Atkinson v. Orkin Exterminat-ing Co., 5 Kan. App. 2d 739, 747, 625 P.2d 505, 511 (not a construction case),affid, 230 Kan. 277, 634 P.2d 1071 (1981). See generally PROSSER AND KEETON,supra note 53, § 2.

68. The injured worker might want to proceed against the engineer be-cause workers' compensation benefits are the exclusive remedy against his em-ployer/contractor. Recent amendments to some state workers' compensationstatutes bar an action against design professionals for injuries on the construc-

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gence actions for economic injuries where the plaintiff's harm isoutside the scope of foreseeable damage and only weakly con-nected to the structural failure. Like the owner, however, the in-jured worker or bystander can generally maintain a cause ofaction in tort for personal injuries.

B. The Engineer's Standard of Care

Unless the engineer's professional services contract with theowner or architect establishes a minimum measure of perform-ance,69 the law imposes the same standard of care in both con-tract and tort actions; judicial deference towards professionalsinterjects a tort standard of care into the contract interpreta-tion. 70 Four distinct measures of the engineer's implied standardof care have evolved, three by judicial definition and one by regu-latory action.

1. The Professional Malpractice Standard

The seiminal American case, Coombs v. Beede,7' establishedthe early standard of care for architects:

The undertaking of an architect implies that he pos-sesses the skill and ability. . . sufficient to enable him toperform the required services at least ordinarily and rea-sonably well . . . . But the undertaking does not implyor warrant a satisfactory result. . . . An error of judge-ment is not necessarily evidence of a want of skill or care,for mistakes and miscalculations are incident to all thebusiness of life. 72

The Second Restatement of Torts incorporates the Coombs state-ment into its general standard for all professions, includingengineers:

Unless he represents that he has greater or less skill orknowledge, one who undertakes to render services in the

tion site unless responsibility for safety is specifically assumed by contract or theinjury is caused by negligent preparation of design plans or specifications. SeeKansas H.B. 2084 (1985) (amending KAN. STAT. ANN. §§ 44-501,-508 (1981 andSupp. 1984)); OKLA. STAT. ANN. tit. 85, § 12 (West Supp. 1984).

69. See supra note 51.70. See supre notes 51-52 and infra notes 71-83 and accompanying text.71. 89 Me. 187, 36 A. 104 (1896).72. Id. at 188-89, 36 A. at 105. See also T. CLARK, ARCHITECT, OWNER AND

BUILDER BEFORE THE LAW 28 (1905);J. WAIT, ENGINEERING AND ARCHITECTURALJURISPRUDENCE 751 (1898).

418 [Vol. 30: p. 403

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practice of a profession or trade is required to exercisethe skill and knowledge normally possessed by membersof that profession or trade in good standing in similarcommunities.

73

This standard includes the "performance of skills necessary incoping with engineering and construction problems" outside theknowledge of ordinary laymen.74 It does not, however, set thestandard at either the level of the most highly skilled or even theaverage practitioner, since those below the average may be com-petent and qualified nonetheless. 75

Although a majority ofjurisdictions have clearly adopted this"professional" standard for architects and engineers,76 only a

73. RESTATEMENT (SECOND) OF TORTS § 299A (1965).74. Bartak v. Bell-Galyardt & Wells, Inc., 629 F.2d 523, 529 (8th Cir. 1980).

See also Aetna Ins. Co. v. Hellmuth, Obata & Kassabaum, 392 F.2d 472, 477 (8thCir. 1968).

75. See RESTATEMENT (SECOND) OF TORTS § 299A comment e (1965). TheRestatement drafters emphasized that competence was the critical factor.

In the absence of any such special representation, the standard of skilland knowledge required of the actor who practices a profession ortrade is that which is commonly possessed by members of that profes-sion or trade in good standing. It is not that of the most highly skilled,nor is it that of the average member of the profession or trade, sincethose who have less than median or average skill may still be competentand qualified.

Id.76. See, e.g., Bartak v. Bell-Galyardt & Wells, Inc., 629 F.2d 523, 529 (8th

Cir. 1980) (standard of care for architects is similar to that for other profession-als); General Trading Corp. v. Burnup & Sims, Inc., 523 F.2d 98, 101 (3d Cir.1975) (standard of reasonable care which applies to architects is the same as thestandard which applies to other professionals who furnish skilled services forcompensation); Karna v. Byron Reed Syndicate, #4, 374 F. Supp. 687, 689 (D.Neb. 1974) (architect's duty is to exercise care ordinarily exercised by membersof his profession); Huber, Hunt & Nicols, Inc. v. Moore, 67 Cal. App. 3d 278,313, 136 Cal. Rptr. 603, 625 (1977) (architect is required to perform in accord-ance with a professional standard of care); Yarbro v. Hilton Hotels Corp., 655P.2d 822, 828 (Colo. 1982) (architect's inspection, supervision and observationof construction involve individual judgment and expertise, which is not suscepti-ble to the quality control standards of a factory); Seiler v. Levitz Furniture Co.,367 A.2d 999, 1007-08 (Del. 1976) (standard of care applicable to professionalpersons providing services is also applicable to architects and engineers); Morri-son v. MacNamara, 407 A.2d 555, 560-61 (D.C. 1979) (one who has specialknowledge or skills is required to exercise his superior ability in a manner rea-sonable under the circumstances); Shepard v. City of Palatka, 414 So. 2d 1077,1078 (Fla. Dist. Ct. App. 1981) (engineers and architects are to exercise theirprofessional skill and judgment in a reasonable manner and without neglect); H.Elton Thompson & Assocs. v. Williams, 164 Ga. App. 571, 572, 298 S.E.2d 539,540 (1982) (professionals are obligated to exercise a reasonable degree of care,skill, and ability as is ordinarily exercised by their profession); Lukowski v. VectaEduc. Corp., 401 N.E.2d 781, 786 (Ind. Ct. App. 1980) (architect required toexercise his special skill and knowledge and use his best professional judgment);Schlitz v. Cullen-Schlitz & Assocs., 228 N.W.2d 10, 17 (Iowa 1975) (architect

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handful have adhered to the Restatement's locality rule.77 TheRestatement compares the engineer's performance with that ofothers in similar "communities," leading to the conclusion that aNew York City engineer could be held to a standard differentfrom that of a Lawrence, Kansas, engineer. 78 Judicial reluctanceto adopt the locality rule may be due to a desire to apply a na-tional standard when appropriate and to the difficulty of findingcompetent expert witnesses from a similar practice in a similarlocality.

79

Few appellate courts have identified probative evidence for

obligated to furnish design and specifications prepared with a reasonable degreeof technical skill); Klein v. Catalano, 386 Mass. 701, 715, 437 N.E.2d 514, 525(1982) (architect does not impliedly guarantee his work is fit for its intendedpurpose, but rather that he has exercised the level of skill and care required of amember of his profession); Tiffany v. Christman Co., 93 Mich. App. 267, 286,287 N.W.2d 199, 207 (1979) (architects and engineers held to the level of ordi-nary skill and care common to their professions); City of Eveleth v. Ruble, 302Minn. 249, 253, 225 N.W.2d 521, 524-25 (1974) (professional is under a duty toexercise such care, skill, and diligence as others in his profession ordinarily exer-cise under like circumstances); State ex rel. Risk Management Div. of Dep't. ofFin. & Admin. v. Gathman-Matotan Architects & Planners, Inc., 98 N.M. 790,792-93, 653 P.2d 166, 169 (1982) (professional required to exercise the reason-able skills of his profession); Van Ornum v. Otter Tail Power Co., 210 N.W.2d188, 201 (N.D. 1973) (architect obligated to exercise the level of learning, skilland care ordinarily exercised by others of his profession); Waggoner v. W & WSteel Co., 657 P.2d 147, 149 (Okla. 1982) (architect does not guarantee perfectresults, but rather is liable only for failure to exercise reasonable care and pro-fessional skill); Surf Realty Corp. v. Standing, 195 Va. 431, 442-43, 78 S.E.2d901, 907 (1953) (architect must possess and exercise the degree of care of thoseordinarily skilled in his profession); Hull v. Enger Constr. Co.,15 Wash. App.511, 515, 550 P.2d 692, 695 (1976) (architect held to a professional standard ofcare); A.E. Inv. Corp. v. Link Builders, 62 Wis. 2d 479, 488-89, 214 N.W.2d 764,769 (1974) (architect's duty is to exercise the level of care ordinarily exercisedby members of his profession). See also Coburn v. Lenox Homes, Inc., 186Conn. 370, 381, 441 A.2d 620, 626 (1982) (a builder is under a duty to exercisethat degree of care which a skilled builder of ordinary prudence would haveexercised).

77. See, e.g., Clark v. City of Seward, 659 P.2d 1227, 1230 (Alaska 1983)(engineer has duty to exercise that degree of learning and skill ordinarily pos-sessed by engineers practicing in the same locality and under similar circum-stances); Nauman v. Harold K. Beecher & Assocs., 24 Utah 2d 172, 179, 467P.2d 610, 615 (1970) (architects held to the standard of care possessed by archi-tects in their locality). See also Seaman Unified Sch. Dist. No. 345 v. Casson Con-str. Co., 3 Kan. App. 2d 289, 292-95, 594 P.2d 241, 245 (1979) (applying acommunity standard to determine whether expert testimony is required). But seePaxton v. County of Alameda, 119 Cal. App. 2d 393, 406, 259 P.2d 934, 942(1953) (deviation from the practice normally followed in a community does notnecessarily indicate negligence).

78. See supra note 73 and accompanying text.79. See Swan v. Lamb, 584 P.2d 814 (Utah 1978). In this medical malprac-

tice action, the Utah Supreme Court reversed a trial court's refusal to admitexpert testimony on a national standard of care. Id. at 818. The concurringjudge stated that if the critical issue in a case relates to a generally known and

18




defining the engineer's standard of care. In Burran v. Dambold,s0

however, the United States Court of Appeals for the Tenth Cir-cuit established one litmus paper test by holding that a structuralengineer's failure to design reinforced concrete picnic shelters incompliance with the New Mexico state building code constitutednegligence per se. 8 ' Under Burran, then, evidence of a violation ofa state statute or municipal ordinance may entitle the plaintiff to adirected verdict without consideration of the standard of care.82

By contrast, the violation of a private safety code or design man-ual, such as the National Fire Code or National Electric Code, isadmissible but not conclusive evidence of negligence.8 3 Despiteits advantage of predictability, the Burran rule establishes a rela-tively low standard of care since design codes often run five toseven years behind the publication of new knowledge.

2. An Intermediate Standard-Duty to Stay Informed

Several courts, either in direct holdings or dicta, have hintedat a higher standard of care for professionals than that of the Re-statement by requiring consideration of advances in the profes-sion. 84 First suggested in a medical malpractice case in 1853,85

accepted practice, then a "national" standard can be properly applied. Id. at818-19 (Crockett, J., concurring specially).

80. 422 F.2d 133 (10th Cir. 1970) (applying New Mexico law).81. Id. at 135.82. Id. See PROSSER AND KEETON, supra note 53, § 36. See also Henry v. Britt,

220 So. 2d 917, 920 (Fla. Dist. Ct. App.) (evidence of violation of a statute con-stituted prima facie evidence of negligence), cert. denied, 229 So. 2d 867 (Fla.1969). See generally RESTATEMENT (SECOND) OF TORTS § 288C (1965).

83. Evans v. Howard R. Green Co., 231 N.W.2d 907, 913 (Iowa 1975).84. See, e.g., Miller v. DeWitt, 59 111. App. 2d 38, 111,208 N.E.2d 249, 284

(1965), modified, 37 Ill. 2d 273, 226 N.E.2d 630 (1967) (architect must "keepabreast of the improvements of the times"); Brune v. Belinkoff, 354 Mass. 102,109, 235 N.E.2d 793, 798 (1968) (requiring physician to "tak[e] into account theadvances in the profession"); Hansen v. Pock, 57 Mont. 51, 58-59, 187 P. 282,284 (1920) (physician must recognize and use "the condition of medical or sur-gical science" at the time); Banner v. Town of Dayton, 474 P.2d 300, 307-08(Wyo. 1970) (engineer required to be familiar with current developments in hisfield). See also National Cash Register Co. v. Haak, 233 Pa. Super. 562, 335 A.2d407 (1975). In deciding the negligence of an architect for faulty design of drywells, the appellate court in Haak reversed to allow a geology professor to testifythat none of the professor's geologist colleagues, either at the college or else-where, would have designed the well system as the architect had, and that heknew this from discussions at meetings with those colleagues. Id. at 574, 335A.2d at 412.

85. McCandless v. McWha, 22 Pa. 261 (1853) (mandating consideration of"the advanced state of the profession at the time" in determining the degree ofskill to which a physician should be held). Expanding on the idea of a physi-cian's duty to stay current, the McCandless court observed:

Discoveries in the natural sciences for the last half-century have exerted

1985]

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and repeated in cases concerning malpractice of physicians whofailed to use X-rays for diagnoses, 86 the notion of a duty to stayinformed has also appeared in a few engineering liability cases.For example, in Chapel v. Clark,8 7 the architect brought suit to re-cover professional fees, and the owner counterclaimed for addi-tional construction costs incurred because of the architect's errorsor omissions."" The Michigan Supreme Court refused to imposean implied warranty on the architect's work and held only that"[t]he law requires the exercise of ordinary skill and care, in thelight of present knowledge." 89

Similarly, the Wyoming Supreme Court, in Banner v. Town ofDayton,90 fully reviewed both the standard of care and the suffi-ciency of evidence in reversing a summary judgment in favor of aconsulting engineer. The city had hired the engineer to designand supervise installation of a new city water main. The mainsubsequently developed numerous leaks from electrolysis-in-duced corrosion. 9' The supreme court, finding that electrolysiswas a "common subject of discussion among the profession at thetime" as evidenced by articles in professional journals, 92 held thatthe engineer failed to meet the minimum standard of care. 93

This higher standard recognizes sub silentio Judge LearnedHand's reasoning in The T.J. Hooper,94 in which the United StatesCourt of Appeals for the Second Circuit held tugboat owners lia-ble for losses incurred during a storm because the tugs were notequipped with radios that would have warned against the impend-

a sensible influence on all the learned professions, but especially onthat of medicine, whose circle of truths has been relatively much en-larged. And besides, there has been a positive progress in that profes-sion resulting from the studies, the experiments, and the diversifiedpractice of its professors. The patient is entitled to the benefit of theseincreased lights. The physician or surgeon who assumes to exercise thehealing art, is bound to be up to the improvements of the day. Thestandard of ordinary skill is on the advance; and he who would not befound wanting, must apply himself with all diligence to the most ac-credited sources of knowledge.

Id. at 269.86. For citations to these cases and a comprehensive discussion of the duty

to stay informed in medical malpractice cases, see McCoid, The Care Required ofMedical Practitioners, 12 VAND. L. REV. 549, 575-81 (1959).

87. 117 Mich. 638, 76 N.W. 62 (1898).88. Id. at 638-39, 76 N.W. at 62.89. Id. at 640, 76 N.W. at 62 (emphasis added).90. 474 P.2d 300 (Wyo. 1970).91. Id. at 301.92. Id. at 307 n.7.93. Id. at 308.94. 60 F.2d 737 (2d Cir.), cert. denied, 287 U.S. 662 (1932).

422 (Vol. 30: p. 403

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ing storm. 95 Noting that an entire profession cannot hide behind"customary" but negligent practices, 96 Judge Hand wrote that

[t]here are, no doubt, cases where courts seem to makethe general practice of the calling the standard of properdiligence . . . . Indeed in most cases reasonable pru-dence is in fact common prudence; but strictly it is neverits measure; a whole calling may have unduly lagged inthe adoption of new and available devices. . . . [T]hereare precautions so imperative that even their universaldisregard will not excuse their omission. 97

3. A Strict Liability Standard

Strict liability provides a second alternative to the "profes-sional" standard of care for structural engineers. Injured ownersor third parties could conceivably recover under two strict liabilitytheories: (1) a products liability claim based on a defective condi-tion in the structure; or (2) a warranty claim based on representa-tions made by the engineer. Few courts, however, have allowedrecovery against design professionals under either theory.

Strict liability for defective products imposes liability on"sellers" of "products" without fault.98 Under section 402A ofthe Second Restatement of Torts, the injured party need only es-tablish that the product exhibits a condition of safety below thatimposed by operation of law and that it was expected to and didreach the consumer substantially unchanged. 99 It makes no differ-ence that the seller exercised all possible care in preparing theproduct. 00 In the construction context, the application of thistheory could raise the specter of liability of the structural engi-neer in two ways, assuming that an engineer sells some finishedproduct.

First, if the structural engineer's "product" is the finishedbuilding, then he would be liable to the owner for any injurycaused by either design or construction errors. The complexityof building projects, the sheer number of construction partici-

95. Id. at 739-40.96. Id. at 740.97. Id. (citations omitted).98. RESTATEMENT (SECOND) OF TORTS § 402A (1965). For a discussion of

§ 402A and strict liability in products cases, see supra notes 24-30 and accompa-nying text.

99. RESTATEMENT (SECOND) OF TORTS § 402A (1965).100. See id. Section 402A focuses on the safety of the product, not on the

conduct of the manufacturer.

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pants, and the inherent inability of the engineer to control theconstruction progress militate against such a broad definition ofproduct. By contrast, if the engineer's "product" is a completeddesign embodied in drawings and specifications, he could bestrictly liable for all injury or loss caused by design error, absentsuperseding acts of negligence by the general contractor or sub-contractors. 0 1 Under this theory, even if the engineer uses stateof the art design knowledge, he could be liable if the structurefails on account of design error. 10 2

Despite the intuitive appeal to the public of the products lia-bility approach, courts have unanimously refused to apply thedoctrine to engineers 0 3 unless the engineer participates in theassembly or manufacture of a structure or building compo-nent. 10 4 Courts have recognized that owners or architects hireengineers to provide services, not insurance on the exercise oftheir professional judgments. 0 5

101. See Comment, Architect Tort Liability in Preparation of Plans and Specifica-tions, 55 CALIF. L. REV. 1361, 1380 (1967).

102. For example, a design engineer could be strictly liable for the collapseof a novel 1250 foot cylindrical television tower where the design undertakenwas "beyond the frontiers of knowledge." See Stanton & Dugdale, Design Respon-sibility in Civil Engineering Work, 131 NEw L.J. 583, 585 (1981). Such a case oc-curred in England where the collapse was due to icing of the stay ropes and"vortex shedding," which is air turbulence creating random pressure on thestructure. The unreported opinion of the House of Lords is described in theStanton and Dugdale article.

103. See, e.g., LaRossa v. Scientific Design Co., 402 F.2d 937, 941-43 (3dCir. 1968) (distinguishing professional services from consumer goods and refus-ing to apply strict liability standards to the former on policy grounds); K-MartCorp. v. Midcon Realty Group, Ltd., 489 F. Supp. 813, 819 (D. Conn. 1980)(doctrine of strict liability does not extend to design and development of build-ings); Swett v. Gribaldo, Jones & Assocs., 40 Cal. App. 3d 573, 575-76, 115 Cal.Rptr. 99, 101 (1974) (engineers not liable in the absence of negligence or inten-tional conduct); Castaldo v. Pittsburgh-Des Moines Steel Co., 376 A.2d 88, 90-91 (Del. 1977) (strict tort liability not imposed against defendants who have pro-vided only professional services); City of Mounds View v. Walijarvi, 263 N.W.2d420, 424-25 (Minn. 1978) (architectural errors better handled under a cause ofaction for professional negligence rather than strict liability); Queensbury UnionFree Sch. Dist. v.Jim Walter Corp., 91 Misc. 2d 804, 398 N.Y.S.2d 832 (Sup. Ct.1977) (no action in strict liability for damages resulting from an architect'sservices).

104. See Abdul-Warith v. Arthur G. McKee & Co., 488 F. Supp. 306, 310-11(E.D. Pa. 1980) (engineering firm both designed and built skip bridge for steelblast furnace), aff'd mere., 642 F.2d 440 (3d Cir. 1981).

105. See Swett v. Gribaldo, Jones & Assocs., 40 Cal. App. 3d 573, 576, 115Cal. Rptr. 99, 101 (1974); Gagne v. Bertran, 43 Cal. 2d 481, 489, 275 P.2d 15,21 (1954) ("Those who hire [experts] are not justified in expecting infallibility,but can expect only reasonable care and competence. They purchase service,not insurance."). But see Comment, supra note 101, at 1386 (most building own-ers simply "assume that the architect's plans will not be defective," and "[tihe

22




The second basis for strict liability could arise from an engi-neer's express or implied representations that the structure willbe fit for its intended purpose. Although the implied warrantyaction has gained support as an additional form of consumer pro-tection in residential construction, 10 6 very few courts have al-lowed the doctrine to operate absent the engineer's actualknowledge of unique performance criteria. For example, inBloomsburg Mills, Inc. v. Sardoni Construction Co. ,107 the contract be-tween the owner and architect specified temperature and high hu-midity requirements necessary to the owner's weavingbusiness. 10 8 The architect specified a built-up roof with a vaporbarrier to protect against roof-surface condensation, but the bar-rier failed and the roof had to be replaced. 10 9 The PennsylvaniaSupreme Court, while expressly adopting the professional stan-dard, stated: "While an architect is not an absolute insurer ofperfect plans, he is called upon to prepare plans and specifica-tions which will give the structure so designed reasonable fitnessfor its intended use, and he impliedly warrants their sufficiencyfor that purpose."' "I 0 The implied warranty theory could bode anominous standard for design-build projects,"' where in-house"professional" engineering work merges with construction into afinished product.

4. A Regulatory Standard-Gross Negligence

The Environmental Protection Agency (EPA) has promul-

law should protect those 'thoughtless' clients from their own lack of foresight"by imposing strict liability on the design professional).

106. See Kristek v. Catron, 7 Kan. App. 2d 495, 644 P.2d 480 (1982) (pur-chaser of a residence may recover property damage resulting from builder's con-duct under theory of implied warranty); Weeks v. Slavik Builders, Inc., 24 Mich.App. 621, 180 N.W.2d 503 (implied warranty of fitness for use extends to pur-chaser of a new residential dwelling), aft'd, 384 Mich. 257, 181 N.W.2d 271(1970); Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965) (plaintiffasserting claim against builder of residential dwelling on theory of implied war-ranty has burden of proving existence of a defect at the time of sale).

107. 401 Pa. 358, 164 A.2d 201 (1960).108. Id. at 359, 164 A.2d at 202.109. Id.110. Id. at 361-62, 164 A.2d at 203. See also Chrischilles v. Griswold, 260

Iowa 453, 460, 150 N.W.2d 94, 99 (1967) (architect bound to produce a build-ing of the kind called for, without marked defects in character, strength, or ap-pearance); Tamarac Dev. Co. v. Delamater, Freund & Assocs., 234 Kan. 618,622-23, 576 P.2d 361, 365 (1984) (duty of architect "gives rise to an impliedwarranty of workmanlike performance").

111. SeeJ. SWEET, supra note 42, at 700 ("[S]ometimes design and construc-tion are combined. This can be accomplished by a large firm which suppliesboth functions.").

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gated regulations that establish a special federal standard of carefor consulting engineers on new waste water treatment plantfunded under the Clean Water Act.' 2 The EPA encourages own-ers to incorporate new "innovative" methods of sewage treatmentin EPA-funded plants. 113 In return, the consulting design engi-neers are given contractual immunity from liability for innovativedesigns in the absence of gross negligence. 1 4 This lower stan-dard has not been adopted in other agency design contracts andremains an unlikely candidate for projects involving great safetyrisks to the public. 1 5

IV. DEFINING AN APPROPRIATE STANDARD OF CARE

Identification of the four horizons of engineering designknowledge and information prompts the pressing question ofwhether the courts are applying the appropriate standard of careto engineers. As Judge Hand recognized in The T.J. Hooper, courtswill not permit an entire profession to absolve itself from liabilityby adopting negligent methods as its industry standard. 116 Cer-tainly no American court has gone as far toward immunizing theengineer as one English court did in 1853:

[I]f the building is of an ordinary description, in which[the engineer] has had abundance of experience, and itproved a failure, this is evidence of want of skill or atten-tion. But if the building is out of the ordinary course,and you employ him about a novel thing, . . . if it hasnot had the test of experience,failure may be consistent withskill. 17

A court's choice between strict liability and liability based on theengineer's negligence reflects a decision to evaluate either the fin-

112. 33 U.S.C. §§ 1251-1376 (1982). The act authorizes the EPA to fi-nance construction of waste treatment works, and to promulgate standards fortheir construction. See 40 C.F.R. §§ 35.900-.970 (1982).

113. 40 C.F.R. § 35.908(a) (1983).114. 40 C.F.R. § 35.900 app. C-1 § 2(d) (1983). This immunity extends

only to the use of innovative processes or techniques, not to standard designand construction processes. Id.

115. See Clovis Heinsath & Assocs., NASA B.C.A. No. 180-1 16,133(1983) (adopting the "locality" rule, a standard different from the innovativedesign immunity proposed by the EPA for an engineering design error case).

116. For a discussion of the Hooper decision, see supra notes 94-97 and ac-companying text.

117. Turner v. Garland & Christopher, 2 Hudson's B.C. 127 (1853), quotedin W. BALL, THE LAw AFFECTING ENGINEERS 53 (1909) (emphasis added).

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ished product or the process employed in the design."l 8 The fol-lowing discussion suggests a rationale for adopting a negligencetheory of liability for engineers and proposes an appropriate stan-dard of care.

A. A Rejection of Strict Liability

Despite the forceful arguments of two student commenta-tors," 9 courts have correctly refused to apply either absolute orstrict liability to design professionals. 120 Both legal and policy ar-guments support this position. First, a supplier of services is ex-pressly outside the scope of section 402A.121 Even those courtsthat recognize strict liability in the residential construction con-text, thus blurring the fine line between buildings and consumerproducts, continue to distinguish the engineer's service contractfrom the design-build contract. 22 Second, a negligence standardis more consistent with the reasonable expectations of the ownerand engineer because of the engineer's inherent inability to con-trol the entire construction process. 23 By contrast, an automo-bile manufacturer typically has absolute control of the componentassembly process from frame to custom interior.

Third, the policy bases underlying strict products liabilitygenerally do not apply to structural engineers. For example, theproduct owner's difficulty in proving a manufacturer's negligentdesign of a mass-produced product is not present when a singlestructural engineering firm designs a single structure for a known

118. SeeJ. SWEET, supra note 42, at 111-12.119. Comment, supra note 101 at 1379-91 (current means of shifting risk of

loss, such as contractual arrangements or insurance, are inadequate to protectthe rights of he injured); Note, Products and the Professional: Strict Liability in theSale-Service Hybrid Transaction, 24 HASTINGS L.J. 111, 129-131 (1972) (advocatingstrict liability in hybrid transactions as a way of balancing the tremendous bene-fits which accrue to professionals against their responsibility to those harmed bytheir failure to perform).

120. See supra notes 103-10 and accompanying text. In the constructioncontext, absolute liability would render an engineer liable for any structural fail-ure, even one caused by the negligence of a third party-like a steel erectorleaving a critical connection unbolted. By contrast, the erector's intervening actwould supersede an engineer's liability under a general products liability theory.See generally PROSSER AND KEETON, supra note 53, § 102.

121. RESTATEMENT (SECOND) OF TORTS § 402A, comments e & f (1965). SeeAbdul-Warith v. Arthur G. McKee & Co., 488 F. Supp. 306, 310 & n.3 (E.D. Pa.1980) (§ 402A does not extend to parties who provide only services), aff'd mem.,642 F.2d 440 (3d Cir. 1981).

122. For an explanation of the design-build contract, see supra note 111and accompanying text.

123. See Note, Liability of Design Professionals-The Necessity of Fault, 58 IowA L.REV. 1221, 1246 (1978).

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owner. Similarly, although the threat of strict products liabilitymay encourage manufacturers of mass-produced products to de-velop safer manufacturing processes, it has little effect on an engi-neer with no direct control over fabrication and constructionmethods.' 24 Too, products liability's policy of spreading the riskof injuries among numerous purchasers by incremental additionsto product costs is inappropriate in the structural engineeringcontext. As one court observed:

If every facet of structural design consisted of little morethan the mechanical application of immutable physicalprinciples, we could accept the rule of strict liabilitywhich the city proposes. But even in the present state ofrelative technological enlightenment, the keenest engi-neering minds can 'err in their most searching assess-ment of the natural factors which determine whetherstructural components will adequately serve their in-tended purpose. Until the random element is eliminatedin the application of architectural sciences, we think itfairer that the purchaser of the architect's services bearthe risk of such unforeseeable difficulties. 125

Although the owner may be strictly liable for defects in his build-ing premises,' 26 he also gets the direct benefits of the building.The engineer does not have numerous purchasers among whomthe risk may be spread; the risk of structural failure can be passedonly to the owner in the form of increased design fees.

A fourth reason courts have not applied strict or absolute lia-bility is that mass-produced products, even automobiles and air-craft, can be effectively modeled before production to predict

124. The engineer's slipping grasp on construction practices is perhapsmost evident in structural steel detail design and fabrication. As limited designfunds force more detail work from the engineer's board squarely onto thefabricator, fast track scheduling and persistent construction managers concen-trate the engineer's connection review time. Concurrently, however, engineershave adopted review stamps that disclaim or obfuscate responsibility for connec-tion design and strength. Dallaire & Robison, Structural Steel Details: Is Responsi-bility a Problem? Civ. ENGINEERING--ASCE, Oct. 1983, at 51.

125. City of Mounds View v. Walijarvi, 263 N.W.2d 420, 424 (Minn. 1978)(footnote omitted).

126. See Memorandum of Law in Support of Plaintiffs' Motion for PartialSummary Judgment, at 28, In re Federal Skywalk Cases, No. 81-0945 (W.D. Mo.,filed May 4, 1983). See also Ursin, Strict Liability for Defective Business Premises-OneStep Beyond Rowland and Greenman, 22 UCLA L. REV. 820, 823 (1974) (strictliability for owners serves the policy of spreading the risk of accident losses be-cause the owner can insure against the risk of loss and then pass the cost ofinsurance on to his customers).

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accurately all operational characteristics. This is not so in thecase of structures. While some testing is possible, the sheer sizeof buildings and other structures make impossible the destructivetesting of all connections, components, and interfaces betweenthe structure and building fabric.

Finally, the formulation of the products liability state of theart defense demonstrates the doctrine's inapplicability to designengineers.' 27 Commentators define the product's state of the artin terms of economic considerations like cost, utility, and ease ofassembly, in addition to technological factors like strength ofmaterials and availability of alternative designs. 128 For buildings,however, those same economic factors must be accommodatedwithout sacrificing the integrity of the structure and imperilingthe public; cost considerations cannot compromise the structuralintegrity of a design.' 29

B. A Rejection of the Professional Standard

The "professional" standard, 130 established by reference tocare exercised by other engineers, is likewise an inappropriatemeasure of the engineers' performance. This objective standard,keyed to the knowledge and skill "ordinarily possessed and exer-cised," establishes only the minimum professionally acceptableconduct.' 31 Under the "reasonable man" concept, negligencelaw requires prudent conduct-a standard somewhat above aver-age.' 32 Yet for professionals, the courts apparently consider a"prudent" standard too high.' 33 This may be so because proof of

127. For an explanation of the various formulations of the state of the artdefense, see supra notes 27-30 and accompanying text.

128. See generally O'Donnell, supra note 26; Raleigh, supra note 26.129. See Behind All Those Roof Collapses, Christian Science Monitor, Jan. 31,

1978, at 1, col. 5. This article states that structural engineers are angry at beingblamed for collapses they feel are traceable to "[c]ost-cutting caused by compet-itive bidding at design, materials, construction, and maintenance stages." Id.The article continues:

[T]he fact is that in a competitive business, buildings are designed tocope with l-in-20 year conditions, not 1-in-50, or 1-in-100 ....Faults show up particularly, say engineers, in the bulk-ordered roofsused by discount supermarket chains which count every penny to maketheir operations pay.

Id. at 22, cols. 1-3.130. See supra notes 71-83 and accompanying text.131. Curran, Professional Negligence-Some General Comments, 12 VAND. L. REV.

535, 538 (1959). See also RESTATEMENT (SECOND) OF TORTS § 299A comment b(1965).

132. Curran, supra note 131, at 538.133. See supra notes 71-83 and accompanying text.

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compliance or noncompliance with acceptable practice is difficult,and because the expert is required to testify as to general prac-tices in a profession without clear guidelines. 3 4

C. A New Standard.- The Informed Engineer

The missing element in present formulations of the profes-sional standard of care for engineers is the place of scientific ad-vances in the engineer's designs. Many design professionalsdisdain new techniques, unless the technique either lowers pro-ject and design costs or enables award-winning cutting-edge de-signs. This same conservatism exists in other professions as well.A pioneer doctor put it this way:

Researchers should be quarantined both for their owngood and for the good of the student. . . . The factshould be recognized that the average doctor never doescatch up with what the researcher is doing. We doctorsshould be spared the agony of the scientific deliveryroom and should be allowed to hold the baby only afterthe nurse has him all polished up and dressed. 3 5

So too, practicing engineers may disdain newborn theories untilthey are polished up and dressed in an undergraduate textbookcover. Dean Prosser, however, suggests that the law should take adifferent position:

[A]s scientific knowledge advances, and more and moreeffective tests become available, what was excusable ig-norance yesterday becomes negligent ignorancetoday. 136

In the field of medical practice, for example, one court im-posed upon physicians a general duty to stay informed of presentday scientific knowledge. 137 Another court required physicians toread journals, solicit product data from manufacturers' represent-atives, listen to tape recorded digests of current literature, and

134. For a discussion of the difficulties involved in expert testimony to es-tablish a standard of care in a professional negligence case against a design pro-fessional, see Annot., 3 A.L.R. 4th 1023 (1981).

135. A. HERTZLER, THE HORSE AND BUGGY DOCTOR 46 (1938).136. PROSSER AND KEETON, supra note 53, § 32 (footnote omitted).

137. See Swan v. Lamb, 584 P.2d 814, 817 (Utah 1978). See also McCoid,supra note 86, at 575-81.

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attend postgraduate courses and professional seminars. 38 Suchjurisdictions essentially have abrogated the locality rule, modifiedthe professional standard, and prevented the professional frompracticing in an out-of-date vacuum. Although dicta of somecourts indicate a willingness to adopt an "informed engineer"standard, 3 9 all courts should expressly recognize and apply thishigher standard of care to structural engineers. The engineershould be expected to incorporate into his designs applicable ad-vances in the profession that have reached the "professionally ac-cepted" horizon of knowledge.140

Under this standard the engineer is not held responsible forcutting-edge research or technology that is not widely dissemi-nated to practitioners, but only for accepted techniques publishedin professional journals and accepted by the profession after a pe-riod of time. 141 This national standard of the informed engineeravoids the pitfalls of strict liability, but at the same time preventswholesale engineering practice at the "undergraduate" horizonof minimum acceptable professional conduct.142 The "informed"standard provides a demonstrable level of conduct provable byobjective facts.

The advent of the Architecture and Engineering Perform-ance Center (AEPIC)' 43 at the University of Maryland and thevast dissemination of structural research support the notion ofchanging the standard. AEPIC opened in 1982 to collect, analyzeand disseminate information on the performance of structures inan effort to prevent perpetuation of past design and constructionerrors. The goal of AEPIC is to provide practicing engineers ac-cess to a computer database of case files on successful and unsuc-cessful structures, photographic files, and hard-bound dossiersbefore they commence a similar design.

Judicial adoption of this new, informed standard would not,of course, be without problems. Defendant engineers, their law-yers and insurers will certainly make two arguments that test ourproposed standard. First, the level of "professionally accepted

138. Pederson v. Dumouchel, 72 Wash. 2d 73, 78-79, 431 P.2d 973, 977-78(1967).

139. See supra notes 84-97 and accompanying text.140. See supra text following note 39.141. See supra note 39 and accompanying text.142. See supra note 40 and accompanying text.143. AEPIC is an educational branch of the Schools of Architecture and

Civil Engineering at the University of Maryland. The National Science Founda-tion provides funds for additional research and analysis.

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knowledge" is never clear and possibly incapable of proof. Nu-merous journals publish matters relating to structural engineer-ing practice; 44 one might ask which of these should be surveyedto determine acceptance of a theory by the profession? In case ofconflicting theories, which should be accorded more weight? 145

Furthermore, problems of courtroom proof that the engineer'sdesign either did or did not measure up to the "informed engi-neer" standard remain as difficult as the problems of proof underthe current professional standard. 146

A second, fundamental objection to our standard arises on aphilosophic plane. Even with proof that a theory is accepted bythe profession at the time the disputed design was conceived, thattheory is not necessarily a rigid immutable law for all times. The

144. See supra note 39 and accompanying text. Recent developments mayalso be reported in AM. WATERWORKS A.J., J. ENGINEERING MECHANICS, and PUB.WORKS. Construction material trade associations, such as the American Ironand Steel Institute, the American Institute of Steel Construction, the AmericanConcrete Institute, and the Portland Cement Association, also publish profes-sional journals.

145. The absence of published contradictory articles is only implied sup-port for a theory; if incorrect, a theory remains incorrect whether refuted or not,and many incorrect theories are published. One observer of the scientificmethod has stated:

The second continuum is the scale of scientific competence. It also hasits extremes-ranging from obviously admirable scientists, to men ofequally obvious incompetence. . . . Scientific journals today are filledwith bizarre theories. . . . If anything, scientific journals err on theside of permitting questionable theses to be published, so they may bediscussed and checked in the hope of finding something of value.

Gardner, In the Name of Science, in SCIENCE: METHOD AND MEANING 34-37 (S.Rapport & H. Wright eds. 1963) (emphasis in original). Thus it would not bewise for courts invariably to draw the inference from an absence of contradictoryliterature that a published theory is correct and has been accepted by the profes-sion as a whole.

146. One commentator has criticized the professional standard because ofproblems of proving what is "ordinarily exercised in the profession":

[E]ven where we are able to obtain professional witnesses for the plain-tiff, what is their function? We ask these witnesses to give an "expertopinion" . . . [in court] . . .on whether the defendant's action was inconformity to the skill and learning "ordinarily exercised in the profes-sion," or, whether it was "professionally acceptable conduct." Doesany one practitioner know the answer to this? Is there really an an-swer? Perhaps by some consensus or statistical study answers might beobtained. . . . Witnesses . . . who give "opinions" act individuallyand in an uncontrolled way. Their opinions may not be representative.They represent themselves, really, not "the profession." I wonder if wedon't actually have individuals judging the defendant and not the profes-sion. ...

Curran, supra note 131, at 539 (emphasis in original). Under our proposed stan-dard the problems will remain in proving what constitutes "professionally ac-cepted knowledge."

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history of science shows that even in the proclaimed exact sci-ences such as physics, the principles and laws accepted at anygiven time are subject to change.1 47 As stated by Poincare:

[N]o particular law will ever be more than approximateand probable. Scientists have never failed to recognizethis truth; only they believe, right or wrong, that everylaw may be replaced by another closer and more prob-able, that this new law will itself be only provisional, butthat the same movement can continue indefinitely, sothat science in progressing will possess laws more andmore probable, that the approximation will end by dif-fering as little as you choose from exactitude and theprobability from certitude.148

147. See M. GOLDSTEIN & I. GOLDSTEIN, How WE KNow-AN EXPLORATIONOF THE SCIENTIFIC PROCESS (1978). Goldstein and Goldstein use Newton's theo-rems as an example:

[Newton's] laws [of motion] could be written in the form of math-ematical equations on half a page, and they governed all motions inuniverse as well as on earth . . . In this century Newton's laws werefound to fail when bodies move at very high speeds approaching thevelocity of light. New laws that apply to these high speeds were formu-lated by Einstein. The results of Newton's laws became in turn a spe-cial case-the special case when things move slowly.

Id. at 198-99. Another commentator has observed that "the fact is that everytheory, however majestic, has hidden assumptions which are open to challengeand, indeed, in time will make it necessary to replace." J. BRONOWSKI, THE As-CENT OF MAN 240 (1973).

148. H. POINCARE, THE FOUNDATIONS OF SCIENCE 341 (1913). See also J.BRONOWSKI, supra note 147; B. RUSSELL, RELIGION AND SCIENCE 14-15 (1935)(science is always tentative, expecting that modifications in its present theorieswill sooner or later be found necessary); Weaver, Imperfections of Science, in SCI-ENCE: METHOD AND MEANING 23-24 (S. Rapport & H. Wright eds. 1963) (perfectaccuracy is unattainable in any measurement and certainty is impossible in anyprediction).

Recent writers in the legal literature seem to find more exactness in engi-neering and science than do the philosophers of science. For example, the Kan-sas Supreme Court recently stated:

[I]t can be said certain professionals, such as doctors and lawyers, arenot subject to such an implied warranty. However, an architect and anengineer stand in much different posture as to insuring a given resultthan does a doctor or lawyer. The work performed by architects and engineersis an exact science; that performed by doctors and lawyers is not. A per-son who contracts with an architect or engineer for a building of a cer-tain size and elevation has a right to expect an exact result.

Tamarac Dev. Co. v. Delamater, Freund & Assocs., 234 Kan. 618, 622, 675 P.2d361, 365 (1984) (emphasis added). And a recent American Bar Association Journalarticle noted a "cultural difference" between technology and law:

Both legal and physical precedents are changeable, the first by courtsthemselves or by legislatures, the second by confirmation of subse-quent, differing theory.

Another frequently cited difference in the two cultures turns on

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Changes and progressions of scientific understanding affectengineering 149 in two ways: the "laws" of science change, and themethods engineers use to apply science change. Recognizingthis, so the argument might go, the law of professional malprac-tice should not pretend to acknowledge a body of accepted struc-tural engineering knowledge as forever valid. The current"professional standard" may be somewhat arbitrary and difficultof proof, the argument would continue, but at least it is admit-tedly arbitrary. By contrast, the proposed "informed engineer"standard pretends to embody current knowledge, but such know-ledge is admittedly subject to change. The structural engineer,then, who has not incorporated current "accepted knowledge"should not be penalized since today's "accepted" theory may bemodified or disproved tomorrow.

A corollary to this second argument arises when a structuraldesign incorporates "accepted" knowledge and practice, but thestructure collapses because what was accepted was in fact inva-lid. 150 Similarly, there are already suggestions in the literaturethat use of computer-aided design techniques are hurting overalldesign quality because the structural engineer loses the "feel" forstructures and materials.' 5' These concerns raise a larger di-lemma of whether the law should actively promote progress orsuggest restraint in keeping abreast of progress.

Despite these arguments, we adhere to our contention ,thatcourts should require the structural engineer to use currently ac-

concepts of "fact" and "truth." A scientist or engineer must attach avery high probability, say 90-plus percent, to a phenomenon before be-ing willing to move it from the realm of speculation to fact.

The litigation process . . . normally requires only a preponder-ance of evidence, perhaps something more than 50%, to find "facts"necessary to the resolution of a dispute.

Nyhart &Jones, What You Don't Know About Technology Can Hurt You, 69 A.B.A.J.1667, 1667 (1983).

149. Engineering is defined as "the application of science and mathematicsby which the properties of matter and sources of energy in nature are madeuseful to man in structures, machines, products systems, and processes." WEB-STER'S NEW COLLEGIATE DICTIONARY 375 (1981).

150. The medical literature reports cases where doctors followed recentmedical advances too well, only to learn later, for example, of side effects of aparticular drug which were not known at the time of use. See McCoid, supra note86, at 549, 580-81.

151. AIA, supra note 3, at 10 (use of computers hinders engineers' ability todetermine whether there was an error in the assumptions upon which calcula-tions are based); Thornton, Lessons Learned from Recent Long Span Roof Failures, inLONG SPAN ROOF STRUCTURES 89, 91 (ASCE 1981); Kansas City Star, Oct. 28,1981, at A-4, col. 6 (statements by chairman of ASCE Commission on Failed andDamaged Buildings).

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cepted theories and practices in designing structures. The recentplethora of structural failures, some with loss of life, dictates thatthe law, like science, should move in the direction of progress.Courtroom proof of liability is difficult under the current stan-dard, but it should be no more difficult or uncertain under ourproposal. An objection based on the absence of rigid, immutablescientific laws could be raised against any legal standard. Evendesign principles taught in undergraduate curricula could be su-perseded eventually. To concede that scientific theories are neverfixed is not to say each is not an improvement over itspredecessor.

52

D. Defensive Measures

A review of alternative defensive measures for the practi-tioner is appropriate, lest engineers and their counsel reject the"informed" standard out of hand as patently unreasonable. Six"office practice" suggestions and one possible legal solution areproposed as available alternatives to limit the impact of the "in-formed" standard of care.

1. Ofice Practices

First, as a cardinal rule, an engineer must know the limits ofhis or her capabilities and never undertake more than he or shecan professionally-not merely competently-complete. 53 Sec-

152. The interface between law and scientific or technological advances isdiscussed in a series of articles developed by the National Conference of Law-yers and Scientists and published in the American Bar Association Journal. SeeGreen, Should Technology Assessment Guide Public Policy?, 69 A.B.A. J. 930 (1983)(assessment of the risks, benefits, and costs of technical advancements should bebased on democratic principles); Jasanoff & Nelkin, Science, Technology, and theLimits of Judicial Competence, 68 A.B.A. J. 1094 (1982) (traditional processes ofadjudication are inadequate to handle technological litigation); Markey, Scienceand the Law: A Dialogue on Understanding, 68 A.B.A.J. 154 (1982) (scientific ques-tions should be capable of definitive answers before expert testimony is admit-ted; courts should not attempt to determine scientific truth); Myrick & Sprowl,Patent Law for Programmed Computers and Programmed Life Forms, 68 A.B.A. J. 920(1982) (development of laboratory life forms underscores the necessity of flexi-bility in the law regarding scientific advances); Nyhart & Jones, supra note 117(legal decisions are not the best answers to technical questions); Ramo, Regula-tion of TechnologicalActivities: A New Approach, 67 A.B.A.J. 1456 (1981) (all factors,not just harm to the environment, must be considered before regulations arepromulgated); Thornton, Uses and Abuses of Forensic Science, 69 A.B.A. J. 288(1983) (the law frequently errs in deeming science a product rather than aprocess).

153. The codes of ethics of various professional engineering societies ad-here to the same rule. For example, the code of the American Society of CivilEngineers says that "[e]ngineers shall perform services only in areas of theircompetence." AMERICAN SOCIETY OF CIVIL ENGINEERS, CODE OF ETHICS Canon

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ond, at least one member of the firm should continually reviewthe professional journals and periodically attend seminars to ac-quire knowledge of advances prior to their inclusion in designmanuals. 154 Third, each design should incorporate a review of allavailable information on the performance of similar structuresbased on data obtained through AEPIC or other sources. 155

Fourth, the structural engineer should retain an independentproof engineer to analyze all major designs, not just to checkmathematical computations.' 56 Fifth, the engineer might requestscale model strength tests of innovative designs, components, ormember-critical systems like the space frame. Even full-scale test-ing might be done in some cases. 157 Sixth, the owner and engi-neer should consider full-time engineering supervision during theerection of critical elements of systems to ensure proper construc-tion sequencing and procedures. 158 This suggestion is made de-

2 (1980). Section 6 of the Code of Ethics of the National Society of ProfessionalEngineers states: "The Engineer will undertake engineering assignments forwhich he will be responsible only when qualified by training or experience; andhe will engage, or advise engaging, experts and specialists whenever the client'sor employer's interests are best served by such service." NATIONAL SOCIETY OF

PROFESSIONAL ENGINEERS, ETHICS FOR ENGINEERS. CODE OF ETHICS § 6. Breachof one of the duties under an ethical code can lead to expulsion from theSociety.

154. See supra notes 39 & 144.155. For a discussion of the role AEPIC can play in facilitating dissemina-

tion of advances in the engineering field, see supra note 143 and accompanyingtext.

156. See Thornton, supra note 151, at 91.157. For example, engineers load tested the space frame roof of the Gerald

R. Ford Presidential Museum in Grand Rapids, Michigan, prior to application ofthe roof deck. Total cost: $40,000, or 1.3% of the building's total $3,000,000cost. Space Frame Safety Issue Sparks Full-Scale Load Test, ENGINEERING NEWS REC.,

Sept. 18, 1980, at 39.158. Support for this proposition comes from the profession itself. See, e.g.,

AIA, supra note 3, at 8, 12 (by supervising construction, engineers put them-selves in a better position to discover defects in the work); Thornton, supra note151, at 89, 90, 94-95.

Full time supervision may, however, create liability for construction site ac-cidents. See Balagna v. Shawnee County, 233 Kan. 1068, 668 P.2d 157 (1983);Hanna v. HuerJohns, Neel, Rivers & Webb, 233 Kan. 206, 662 P.2d 243 (1983);Comment, Architects' Liability for Construction Site Accidents, 30 U. KAN. L. REV. 429(1982) (architect must contractually assume control of contractor's methods andprocedures before a duty to protect workers arises).

In 1983, the Florida legislature enacted a law that requires employment of afull-time, qualified inspector during the erection of structural components of allmajor buildings. FLA. STAT. ANN. § 553.79(5)(A) (West 1983). Any structurethat exceeds 25,000 square feet in floor area, that is greater than two stories ortwenty-five feet in height, that has an assembly occupancy greater than 5,000square feet, or is of unusual design or construction technique triggers the in-spector provision. Id. § 553.71(6). Residential structures of three stories or lessare exempt from the inspection requirement. Id.

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spite changes in the AIA and NSPE standard contract documentsthat have moved the design professional away from project super-vision into periodic inspection. 159 Compliance with the first threesuggestions satisfies the engineer's duty to stay informed, whilethe review involved in the last three should help eliminate negli-gent procedures and result in a safe, suitable structure. More-over, design review, testing, and supervision costs are all directlychargeable to the project owner.

2. A Contractural Alternative: Indemnity Clauses

A crucial but unspoken issue underlying the structural engi-neer's liability is which of the parties should bear responsibilityfor developmental risks? 160 In economic terms, the engineer caneither increase precautions against failure by providing design re-dundancy, thus increasing construction costs, or, if his bargainingposition is strong enough, seek indemnification from the ownerfor any resulting liability. 16 1 Either alternative has the effect ofallocating the risk of liability and/or the costs of avoiding liabilityto the project owner.' 62 Owners' agreements to indemnify engi-neers for negligent performance of design responsibilities arestrictly construed but generally upheld 163 unless prohibited by

159. AIA, supra note 43, Document A-201, $ 2.2.3 (1976 ed.) (architectshall visit construction site at intervals appropriate to the stage of constructionto familiarize himself with the progress and quality of work); NSPE, supra note51, Document 1910-1, 1.6.2 (1979 ed.). Seealso Wheeler & Lewis v. Slifer, 195Colo. 291, 577 P.2d 1092 (1978) (contractual authority of architect to stop workto assure proper execution of contract did not impose a duty on architect to seethat work was performed safely); Brown v. Gamble Constr. Co., 537 S.W.2d 685(Mo. Ct. App. 1979) (architects under no duty to supervise construction unlessthey expressly agree to do so).

160. See Stanton & Dugdale, supra note 102, at 585.161. When owners have the bargaining edge, they might insist on just the

opposite, i.e., that the engineer indemnify the owner. One commentator notesthat

[diuring the past five years, architects and engineers have increasinglybeen besieged with demands from their clients for indemnification pro-visions in professional services agreements requiring the architect orengineer to indemnify their clients. This recent trend, which started onthe west coast, has now swept the country.

P. Purcell, Dangers of Hold Harmless and Indemnification Agreements: LegalLiability and Insurability 1, Presentation at 24th Annual Meeting of Invited At-torneys, Savannah (May 10, 1985) (available at Villanova Law Review office).

162. Id. See Coase, The Problem of Social Cost, 3J. LAw & EcoN. 1, 10-11(1960).

163. See Batson-Cook Co. v. Industrial Steel Erectors, 257 F.2d 410, 413-14(5th Cir. 1958); DeFelice v. English, 91 Misc. 2d 1109, 399 N.Y.S.2d 417 (1977)(a tortfeasor may not be denied indemnification because his negligence was ac-tive), afd, 63 A.D.2d 976, 406 N.Y.S.2d 702 (1978); see also RESTATEMENT (SEC-OND) OF CONTRACTS § 192 comment b (1981) (a promise to indemnify is

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statute' 64 or against public policy. 165 If the owner clearly and un-equivocally agrees to indemnify the engineer, the engineer's lia-bility exposure to the owner is significantly reduced. 166

Alternatively, the parties can agree that the owner will purchaseinsurance to cover an anticipated risk, which has the effect of in-demnifying the engineer against his own negligence. 167

V. CONCLUSION

Today, the structural engineer occupies an unenviable posi-tion in the design profession. As project owners demand that ar-chitects create novel, innovative solutions to old space enclosureor spanning problems, the engineer must use proven methodolo-gies to design the structure within the architect's aesthetic param-eters. He has some room for innovation, but ultimately he mustrecognize the impact of statics, dynamics, and, strength of materi-als on such diverse structures as a television tower, a 4,000 foot-long suspension bridge, or a simple warehouse roof. Long spandesigns with fewer redundant elements, lessened resistance tomember buckling, and greater threat to human life increase theengineer's design responsibilities. 168 Structural failures in cuttingedge designs like space frame roof structures are most oftencaused by gross design negligence or construction errors ratherthan by deficiencies in materials or fabrication. 169

unobjectionable if the tortious act is only an undesired possibility and the prom-ise does not tend to induce its commission).

164. E.g., CAL. CIVIL CODE § 2782 (West 1984); DEL. CODE ANN. tit. 6,§ 2704 (1974). See also Anti-Indemnification Statutes, in XIII GUIDELINES FOR IM-PROVING PRACTICE, ARCHITECTS & ENGINEERS PROFESSIONAL LIABILITY No. 8(V.0. Schinnerer & Co. 1983).

165. See Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 98-100, 383 P.2d441, 445-46, 32 Cal. Rptr. 33, 36-38 (1963) (invalidating exculpatory provisionsfound in contracts where indemnitee provides an essential service).

166. By entering into an indemnification agreement with the engineer, theowner indemnitor deprives his insurer of the right to subrogation and may for-feit his liability insurance. See Liberty Mut. Ins. Co. v. Altfillisch Constr. Co., 70Cal. App. 3d 789, 131 Cal. Rptr. 91 (1977). But see Great N. Oil Co. v. St. PaulFire & Marine Ins. Co., 291 Minn. 97, 99, 189 N.W.2d 404, 406 (1971) (in theabsence of an express prohibition in the insurance policy against entering intoexculpatory indemnity agreements, an insured owner may release a contractorfor negligently causing a loss); Insurance Co. of N. Am. v. Universal MortgageCorp., 82 Wisc. 2d 170, 262 N.W.2d 92 (1978).

167. Tuxedo Plumbing & Heating Co. v. Lie-Nielson, 245 Ga. 27, 262S.E.2d 794 (1980); South Tippecanoe Sch. Bldg. Corp. v. Shambaugh & Son,Inc., 182 Ind. App. 350, 395 N.E.2d 320 (1979).

168. AIA, supra note 3, at 3-4, 12. See Christian Science Monitor, supra note129.

169. See Cuoco, supra note 8.

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The rapid development of new design theories and solutionsdemands redefinition of the engineer's standard of care, based onverifiable and comprehensible criteria. Our suggested solutionfollows a theory's chronological development from inception atthe cutting edge, publication in trade journals, acceptance after aperiod of maturation and refinement, and eventual inclusion indesign standards and undergraduate texts. Once a theory is ac-cepted by the profession, the engineer should have a duty to in-form himself of that theory and apply it in practice. Thepracticing engineer should read the journal literature and attendprofessional seminars to acquire knowledge of these advancesprior to their inclusion in design manuals. Current topics instructural engineering open literature include design considera-tions for steel fatigue, brittle fracture, and stress concentrations.Public safety demands that the law recognize successive improve-ments and hold engineers responsible for recognizing and incor-porating them as well. Project owners deserve the latest design toextend the longevity of their investment. The public deservesprotection from deficient structures. The engineer owes himselfdecreased liability exposure arising from structural failures.

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Documents

Liability of Engineers for Structural Design Errors: State